The Tipping Point: Is this the end of Roe vs Wade?
Civil rights lawyer Anita P. Arriola stood before a big crowd of women, tackling a constitutional hot potato she never thought she still would have to defend after the 1973 U.S. Supreme Court’s landmark decision that upheld women’s right to abortion.
“If I was told 28 years ago that I would be talking about this again, I would have said ‘No way.’”
And yet, there she was — wondering if America is on the cliff of a shattering social volte-face.
Pro-choice advocates have found themselves defending Roe vs Wade — more than ever— from a growing right-wing assault. “Many believe this is how abortion ends in America,” Arriola said, speaking before the American Association of University Women-Guam Chapter during a meeting at the Guam Hilton Resort Spa on Sept. 8.
America’s debate on women’s right to abortion has been rekindled and traditional feminism has resurfaced following President Donald Trump’s nomination of the conservative Brett Kavanaugh to the U.S. Supreme Court. Many believe the future of Roe vs Wade is at stake should Kavanaugh be confirmed.
But even without the Kavanaugh factor, America—and Guam for that matter — has been seeing the tipping point, Arriola said. It won’t be a drastic overturning of Roe vs Wade that will change the lives of women, she said, but the recent laws that have been “fizzling away the rights of women.”
At least 19 states have passed laws that require abortions to be performed in hospitals. “For women who live in rural areas or small counties where there are no hospitals and doctors perform abortions in their offices or clinics, that effectively prevents them from getting an abortion,” Arriola said.
At least 32 states now prohibit the use of state funds for abortion procedures. On the federal level, the Trump administration has pulled federal funds from organizations that provide planned parenthood programs and clinics that provide abortion services.
The United States is reaching a point in which “we become a country where women have to go to dangerous means to end a pregnancy,” Arriola said. “And this is already happening in Guam.”
Guam law currently allows a woman to have an abortion within 13 weeks of gestation. From 13 to 26 weeks, abortions can be performed if the doctor has “reasonably determined” that the fetus has a great physical or mental defect or the pregnancy is the result of rape or incest, or that the pregnancy would endanger the life of the mother or would greatly impair the physical and mental health of the mother.
Outside of those conditions, the doctor performing an abortion can be charged with a third degree felony.
In 2008, the Guam Legislature passed The Partial Birth Abortion Ban Act, which refers to “an abortion where the baby is partially delivered live and then killed before its head is delivered.” The physician performing partial abortion will face up to 10 years in prison.
Based on the Abortion Worldwide’s March 2017 statistics, an average of 265 abortions a year were performed on Guam between 2006 and 2017.
Since July, however, Guam has lost the island’s only remaining abortion provider at the Women’s Clinic in Tamuning. Dr. William Freeman has retired and turned over his clinic to Dr. Jeffrey Gabel, who refuses to provide abortion service and has since renamed the clinic “Dr. Gabel’s Clinic Obstetrics & Gynecology Para Famalao’an.”
Dr. Edmund Griley, the first abortion provider on island who owned the Guam Poly Clinic, retired in 2016. He has turned over the clinic to Dr. John Chiu, who doesn’t perform abortions.
Without a local facility that provides clinical service for pregnancy termination, women needing abortions are compelled to fly out of Guam to get the procedures done elsewhere — if not resorting to the back-alley option.
Since Freeman’s retirement, Arriola said, no physician on Guam is willing to perform abortion due to cumbersome requirements that have piled up over the years resulting from new laws that make abortion more restrictive. Guam law, for example, requires abortion providers to file a report with 25 pieces of information with Guam Registrar of Vital Statistics within seven days from the date of the abortion. Information includes the type of abortion procedure used, the age, marital status, and ethnicity of the mother, and the gestational age of the baby among others.
In 2012, the legislature enacted the "The Women's Reproductive Health Information Act of 2012,” which requires the physician to give the scare speech 24 hours before the abortion is to be done. The physician who will perform the procedure is mandated to inform the woman of a “the immediate and long-term medical risks associated with the proposed abortion method, including but not limited to any risks of infection, hemorrhage, cervical or uterine perforation, and any potential effect upon future capability to conceive as well as to sustain a pregnancy to full term.”
Roe v. Wade. Roe v. Wade was a landmark 1973 Supreme Court decision that established a woman's legal right to an abortion. The Court ruled, in a 7-2 decision, that a woman's right to choose an abortion was protected by the privacy rights guaranteed by the Fourteenth Amendment to the U.S. Constitution.
“One of the things that is really discouraging to me is that our government and legislature don’t trust that women can make decisions for themselves,” Arriola said. “They are doing this not because they want to have an abortion. It’s a difficult decision for a woman to make. Our government needs to trust women to make up their own minds and to trust that they are doing the right thing.”
The most recent piece of Guam legislation was Bill 232-34, which proposes banning abortions after 20 weeks of fertilization.
Like other civil rights issues, abortion is a polarizing topic. On Guam, where local Democrats and Republicans do not necessarily subscribe to ideologies, abortion crosses party lines.
Bill 232-34 is a bipartisan bill, which drew pro-lifers and pro-choicers at the public hearing. It was introduced in January by Democrats — Sens. Dennis Rodriguez, Joe S. San Agustin, Telena Nelson, Frank Aguon, Jr., with Republican Sen. Tommy Morrison as cosponsor.
At this point, the bill is not likely to go anywhere. Attorney General Elizabeth Barrett-Anderson declared it unconstitutional, citing Ninth Circuit Court of Appeals decisions on similar laws in Arizona and Idaho.
“There is no doubt that the 20-week period recommended by Bill 232-34 operates as a ban on pre-viability abortion and that it cannot stand under the viability rule enunciated repeatedly by the United States Supreme Court, the Ninth Circuit Court of Appeals which has jurisdiction over Guam, and other circuits,” Barrett-Anderson wrote in her June 26 legal opinion.
This was not the first time the legislature’s attempt to curtail abortion was challenged. In 1990, the Guam legislature passed a very restrictive law that banned all abortions—without even an exception for rape, incest or a fetal deformity. The Guam OB-GYN Society and Guam Nursing Association sought judicial intervention that culminated in a U.S. Supreme Court decision that “guaranteed all women the right to an abortion through the sixth month of pregnancy.”
“There’s a lot of arguments that people make on both sides of the aisle,” Arriola said. “I don’t think I will ever convince anyone who is pro-life. You have your own belief, I have mine. I can only say that I always look at what the Constitution promises us and what we, as women, need.”